Manoj M.P. s/o P.P. Manian v. Lakshmanan P.N. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939** ## **Crl.Rev.Pet.No. 1661 of 2016 (C)** **---------------------------------** **CRA 343/2013 & CRA 344/2013 OF VI ADDL.DISTRICT 7 SESSIONS COURT, ERNAKULAM DATED 31-08-2016** **CC 5351/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT. - IV, ERNAKULAM** **--------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **MANOJ M.P. S/O.P.P.MANIAN, PROPRIETOR, M/S.DIVYA FUELS, CHOTTANIKKARA.P.O., ERNAKULAM DISTRICT.** **BY ADVS.SRI.P.THOMAS GEEVERGHESE SRI.TONY THOMAS (INCHIPARAMBIL)** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANTS:** **---------------------------------------** ## **1. LAKSHMANAN P.N.** **S/O.NARAYANAN PILLAI, MANOVIHAR, THIRUVANKULAM P.O., ERNAKULAM DISTRICT.** ## **2. STATE OF KERALA** **REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SMT.M.D.BEENA R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEE FINALLY HEARD ON 23-06-2017, ALONG WITH CRRP. 1662/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **ALEXANDER THOMAS, J.** ---------------------------------------- Crl.R.P.Nos.1661 & 1662 of 2016 ----------------------------------------Dated this the 23[rd ] day of June, 2017 ## _**O R D E R**_ These Crl.Revision Petitions arises out of the judgments in Crl.Appeal Nos.343 and 344 of 2013, which in turn have arisen out of C.C.Nos.5351 and 5353 of 2010 respectively, on the file of the Court of the Additional Sessions Judge-VI, Ernakulam. The cheques for Rs.1,00,000/- and for Rs.49,000/- dated 31.3.2008 are the two dishonoured cheques in C.C.No.5351 of 2010, thus totalling to Rs.1,49,000/-. The cheques for Rs.1,10,000/- and for Rs.1,00,000/dated 20.2.2008 are the two dishonoured cheques in relation to C.C.No.5353 of 2010, thus totaling to Rs.2,10,000/-. The total cheque amount covered by all these four cheques in the two complaints comes to Rs.3,59,000/-. Both the complaints were jointly tried together and disposed of as per a common judgment and the appeals arising therefrom filed by the accused challenging the conviction therefrom were also disposed of as per a common judgment. 2. In C.C.No.5351 of 2010, the trial court (Judicial First Class Magistrate Court No.IV, Ernakulam) has convicted the petitioner for the offence under Section 138 of the Negotiable Instruments Act and thus Crl.R.P.Nos.1661 & 1662/16 : **:2::** sentenced him to undergo simple imprisonment for two months and to pay fine of Rs.2,18,000/- with the default clause of simple imprisonment for 45 days and that the fine realised should be given to the complainant as compensation under Section 357(1) of the Cr.P.C. In C.C.No.5353 of 2010, the trial court (Judicial First Class Magistrate Court No.IV, Ernakulam) has convicted the petitioner for the offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for two months and to pay fine of Rs.3,10,000/with a default clause of two months simple imprisonment and that the fine should be disbursed to the complainant as compensation under Section 357(1) of the Cr.P.C. Aggrieved by the conviction and sentence, the accused had preferred separate appeals before the Sessions Court, Ernakulam. The appellate court concerned (Court of the Additional Sessions Judge-VI, Ernakulam), as per the impugned judgment rendered on 31.8.2016, had dismissed the appeal confirming the conviction and sentence imposed by the trial court. 3. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 4. Heard Sri.P.Thomas Geeverghese, learned counsel Crl.R.P.Nos.1661 & 1662/16 : **:3::** appearing for the revision petitioner/accused, Sri.Abraham.P.George, learned counsel appearing for R1/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 5. In Crl.R.P.No.1662 of 2016, Sri.P.Thomas Geeverghese, learned counsel appearing for the revision petitioner, has raised various contentions to impugn the legality and correctness of the judgments rendered by both the courts below. One such contention he raised is that the institution of the complaint in the present C.C.No.5353 of 2010 was barred by limitation even as on the date of filing of the said complaint. According to him, based on the details in the certified copy of the complaint in C.C.No.5353 of 2010, the complaint ought to have been filed on or before 22.9.2008, but that in the instant case, the complaint was actually filed before the trial court only on 21.10.2008 and that the complainant had never filed any application to condone the delay as mandated in the proviso to clause (b) of sub-section (1) of Section 142 of the Negotiable Instruments Act. This argument of the revision petitioner has been recorded in paragraph 15 of the impugned appellate judgment. However, it appears that there are no effective findings on the said vital issue, so far as the impugned appellate court judgment is concerned. It is not clear whether the said point was raised before the trial court, but on a perusal of the impugned judgment of the Crl.R.P.Nos.1661 & 1662/16 : **:4::** trial court would also reveal that this issue is not seen considered. Therefore, the fact of the matter is that both the courts below have not addressed themselves to this crucial issue. It is further argued by Sri. P.Thomas Geeverghese, learned counsel appearing for the revision petitioner, that there is a total bar on the criminal trial court in taking cognizance of a complaint for the offence under Section 138 of the Negotiable Instruments Act, if the complaint is not filed within the time limit of one month as mandated in clause (b) of sub-section (1) of Section 142 of the Negotiable Instruments Act, so long as the delay in that regard is not condoned by virtue of the enabling powers conferred under the proviso thereto. Accordingly, it is further argued by the petitioner that so long as the complainant has not bothered to file an application for condonation of delay and the trial court has taken cognizance of the offence, it would be clearly an action of illegality and ultravires on the part of the trial court and after such illegal taking of cognizance, the complainant cannot file any application to condone the delay and the case of the complainant is liable to thrown out and the accused is entitled for acquittal. 6. Accordingly, it is argued by the petitioner that in the facts and circumstances, the entire impugned criminal proceedings before the trial court and the further appellate proceedings are illegal and Crl.R.P.Nos.1661 & 1662/16 : **:5::** ultravires. These contentions of the revision petitioner have not been addressed by both the courts below and therefore, non consideration of such vital contentions would certainly be an illegality which would require interference in these revisional proceedings. Though this Court could have remitted the matter to the trial court for considering these issues afresh, it is felt that to avoid further loss of time, the matter could be appropriately remitted to the appellate court. It is further urged by the counsel for the revision petitioner that the certified copy of the complaint in C.C.No.5353 of 2010 would show that the date of the complaint as given in the type written portion of that complaint is 19.9.2008 and that if actually the complaint has been filed as on that day, then the complaint is within time and that the accused received a copy of the said type written complaint along with the summons and he proceeded as if the complaint was actually filed on 19.9.2008. It is only much later that when the original of the complaint was verified could his counsel come to know that actually it was filed before the trial court only on 21.10.2008. Further that no delay condonation application was ever filed by the complainant for condoning the delay in terms of the provisions contained in proviso to clause (b) of sub-section (1) of Section 142 of the Negotiable Instruments Act. On a consideration of this vital contention raised in Crl.R.P.No.1662 of 2016, this Court is of the Crl.R.P.Nos.1661 & 1662/16 : **:6::** considered view that the matter is liable to be remitted to the appellate court, as both the courts below have failed to reckon such crucial aspects. 7. In Crl.R.P.No.1661 of 2016 as well as in Crl.R.P.No.1662 of 2016, learned counsel appearing for the revision petitioner has raised various contentions in the matter and one such contention is that as per the averments in the statutory demand notices and the complaints in the two cases, the total amount covered by the four cheques in respect of these two complaints come to Rs.3,59,000/- whereas in the common proof affidavit filed by the complainant in lieu of his chief examination in the joint trial he has clearly stated that the total sum that was due from the accused in these two complaints only comes to Rs.3,40,000/-. Nowhere in his proof affidavit or in his cross examination PW1 has raised a case that actually the total amounts due from the accused in respect of these two complaints which led to the issuance of the four cheques in question comes to Rs.3,59,000/-. Therefore, it is contended that the complainant himself has conceded that the actual amount due by the accused to the complainant in respect of these two complaints covered by the four dishonoured cheques in question is much less than the total amount of Rs.3,59,000/- covered by those cheques and that therefore, the cheques are bereft of its full consideration and on that Crl.R.P.Nos.1661 & 1662/16 : **:7::** short ground itself the petitioner is entitled for acquittal. The petitioner places reliance on the decision of this Court in _**Basheer v. Wheels Auto Finance**_ reported in _**2017 (2) KLT 911**_ , which reads as follows : _“16. The Explanation to Section 138 of the 'N.I.Act' clearly stipulates that the debt or other liability means legally enforceable debt or other liability. Therefore, only legally enforceable debt or liability can be enforced in the proceedings under Section 138 of the N.I.Act. Therefore, the dishonoured cheque must have been received by the complainant against a legally enforceable debt or other liability, to attract the offence under Section 138 of the N.I.Act. If the amount covered by the cheque exceeds the legally enforceable debt or other liability, the offence under Section 138 of the N.I.Act is not attracted on dishonour of the said cheque, as the amount covered by the said cheque is not enforceable in law.”_ 8. It is pointed out by the petitioner’s counsel that this argument of the petitioner is applicable not only in Crl.R.P.No.1661 of 2016, but also in Crl.R.P.No.1662 of 2016 as the complaints were jointly tried together. On a consideration of the abovesaid contentions raised by the petitioner in Crl.R.P.Nos.1661 and 1662 of 2016, it is seen that the abovesaid argument based on limitation and lack of full consideration are not properly considered and addressed to both the courts below. Failure to consider such vital issues would amount to illegality and improriety in the impugned judgments of both the courts below. 9. Accordingly, it is ordered that the impugned common judgment dated 31.8.2016 of the court of VI[th] Additional Sessions Judge, Ernakulam, in Crl.Appeal Nos.343 of 2013 and 344 of 2013 will stand Crl.R.P.Nos.1661 & 1662/16 : **:8::** set aside. Resultantly, both Crl.Appeal Nos.343 and 344 of 2013 will stand restored to the file of the said appellate court for consideration of the appeals afresh on merits. Learned counsel for the revision petitioner/accused and learned counsel for the respondent/complainant will appear before the appellate Sessions Court at 11 A.M. on 28.8.2017, on which day, the said court will fix up a date of hearing convenient to both sides and later proceed with the disposal of the criminal appeals without much delay, at any rate, within a period of 3 to 4 months from the date of production of a certified copy this order. The aforesaid contentions of the revision petitioner, as dealt with herein above as well as any other contentions that may be raised by him and the contra contentions in that regard that may be raised by the complainant should be considered in depth by the appellate court. A reasonable opportunity of being heard shall be granted to both sides. Both sides may give their respective argument notes, which shall form part of the Court Records. With these observations and directions, the aforecaptioned Criminal Revision Petitions will stand finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl